Law, Not War: The Long, Hard Search for Justice and Peace

Copyright © 2014 Richard Derecktor Schwartz.

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CONTENTS

Acknowledgments

Introduction

Chapter 1: Sociolegal Creativity in the Ancient Empires: Middle East Origins of Modern Law

Chapter 2: Moses the Lawgiver

Chapter 3: Early Christianity

Chapter 4: The Astonishing Creativity of Athens

Chapter 5: Rome: Birthplace of Constitutional Law and the Legal Profession

Chapter 6: Islam and Mohammed: The Last Prophet

Chapter 7: War and Peace on the Continent: The European Union

Chapter 8: Great Britain: Empire to Commonwealth

Chapter 9: The United States: Democracy on Trial

Chapter 10: Toward a World Society

Conclusion

Bibliography

For Emilie, the love of my life, and our three wonderful children—David, Jane, and Debbie

ACKNOWLEDGMENTS

Over the years, many people have contributed to this book. Whether as teachers, students, or friends, they are lodged in my memory as people who helped me with the basic ideas and, by example, the courage to develop them.

Teachers who helped me generally include cultural historian Ralph E. Turner and sociologists Raymond Kennedy and James G. Leyburn. Colleagues and friends who have lent a hand include Jerry Skolnick, Laura Nader, Malcolm Feeley, Debby Emmelman, Jack Coons, Victor Rosenbloom, and Jack Heinz.

My greatest debt is to Donald T. Campbell. Don has been a personal guide, a role model, an abundant source of good ideas, and a very good friend. Conversations over the years with Don and his wife, Barbara, regularly kept my intellectual batteries fully charged. Whether or not I have chosen the best possible route toward my scholarly goal is, of course, entirely my responsibility.

INTRODUCTION

William Gladstone, a leading Whig political figure in nineteenth-century England, visited Michael Faraday, the inventor, in his laboratory. He had heard from members of the Royal Academy about Faraday’s experiments in generating and utilizing electric currents. Gladstone observed Faraday’s projects for a time and then asked, What is its use? Faraday responded: What use is a baby?

When we look back to the beginning of formal legal systems, we face a similar question. What can we learn from the origin of legal systems, and the developments that ensued? How has law evolved to the point where it has its modern-day characteristics? What can we learn from that history that might be useful in shaping legal systems as they evolve in the future?

This book provides food for thought on such questions. We will look first at legal systems as they evolved in the ancient Middle East. Our attention will be directed in particular to Babylonia and Egypt. Then successively we will describe developments in a series of societies including the Hebrews, the Early Christians, Athens, Rome, Islam, Europe, Britain, and the United States.

Each of these societies has been studied by specialized scholars far more thoroughly than they will be treated in this book. To the extent possible, I will draw on a few selected sources for each society. My purpose is to paint a picture portraying in broad strokes the panorama of legal development. For the scholar, it may provide context that can help to illuminate the relations of law and society. For political people, it should serve as a reminder of possibilities and pitfalls that have occurred along the way. And for the general reader, it offers examples of how in each case individuals and the society as a whole have helped to shape and use their legal institutions.

Some of the most interesting parts of the history are the roles played by individuals who influenced the legal process. One can imagine a gathering of guests at a party in which they exchange descriptions of how they tried to initiate, use, or affect the legal system one way or another. It would be fascinating to bring together the makers of legal history to describe what they intended, what they achieved, and what they regretted. In that light one should surely include such characters as Hammurabi, Ramses II, Moses, Jesus, St. Paul, Solon, Cicero, Mohammed, Grotius, and many more recent contributors. Each of them would have something useful to say by way of advice to the modern world.

In their absence, though, readers might ask such questions for each of the chapters. The book has been put together to provide material for thinking about the legal systems of the past, how they have evolved to the present, and how they might guide us as we move into the future. Whether that approach appeals to any given reader will vary. My hope is that you will find as much of interest in it as I did in researching and writing it.

Law is remarkable for its similarities, even in very different societies. Law purports to resolve conflicts between parties by giving each party an equal opportunity to state its case. Usually the criteria relevant to the issue will have been stated in advance of the hearing, so that each party knows in advance how to present its case. Parties are given assistance to present and prove relevant facts. The ideal case is one in which the two sides are equally represented—even though in the real world that often turns out to be an ideal far from being fulfilled. This tension—between the ideal and the actual—is found in all legal systems, although as we shall see they differ in the measures relied on to close the gap.

In outlining the history of legal development, I have found the concept of evolution useful. Since Darwin formulated it, the concept of evolution has been put to a variety of uses. We need to specify its meaning for our purposes, especially since we propose to apply it to the social rather than to the biological world.

Evolution implies development over time. The attendant idea of survival of the fittest suggests that some entities will survive, while others will not. Survival depends on adaptation to environments. If a given environment will not support a form of life, the entity must either find a more satisfactory one or—failing to do so—will perish.

Some entities require a very specific environment; others have the capacity to adapt broadly, usually by developing characteristics fit for diverse environments. The adapting entity may change form and become a separate species. Whether highly specific or general, the test of evolutionary adaptation is found in the entity’s persistence over time.

Applying these ideas to the social world, it is clear that some practices become widespread and persistent over time—replacing less adaptive ones. Agriculture, for example, replaced hunting and gathering as the major source of food for most societies. The forms of agriculture varied according to the environment, but in general their yield far exceeded hunting and gathering techniques developed by simple societies. In evolutionary terms, example after example chronicles the way productive agriculture creates a food surplus that can be used to support a division of labor where priests, soldiers, and chiefs are relieved of the duty to produce and are supported by others in return for their services. Coercion usually attends such arrangements, to be sure, with taxation and conscription serving the purposes of those in power.

When we find a particular institution in many societies, the explanation of utility comes readily to the fore. Why do people adopt agriculture to replace hunting and gathering? Because it is more efficient, permitting needed specialties to be supported. Such functional analyses have been vigorously questioned, but they retain for this writer enough plausibility to serve at least as hypotheses.

Applying a similar approach to legal institutions, we will be noting that they appear in many different societies. As we shall see, they are not by any means always the same. Yet in each case the legal institution represents an attempt to achieve justice—as that term is diversely defined in different cultures. The legal system is never perfect and is frequently flawed in its implementations. To work effectively as a major instrument of social control, it must acquire legitimacy in the minds of some significant people, be they mainly people in power, in the population as a whole, or in both.

Over time, the locus of legitimacy has shifted from the paramount leader, originally the king, toward a broader group of the population. That change is traceable in our case studies. It is worth noticing that the divine right of kings remained the basis for authority until fairly recent times. Even today, rule by a single person is found in some societies, though the concentration of power in a single person or clique has been increasingly questioned. Recently a wave of popular discontent has led to the fall of authoritarian leaders in certain countries and to the expression of popular discontent with such rulership in several others.

Two aspects of such changes should be noticed: their speed and their spread. Compared with the history of law in the past, the recent scope of changes has been widespread and rapid. If time and location change together at rapid rates, one is led to reflect on the conditions and consequences of such changes. Old words such as revolution do not adequately describe the recent phenomena. When we see sudden major changes such as those that have recently occurred in Tunisia and Egypt, we may not know what to expect, but we feel that something is up.

One is tempted to think in terms used by Einstein to describe the physical world: the relativity of time and space. That temptation should be no more than a passing thought, however. It is enough for us to appropriate the idea of evolution from its natural science base. To venture for theory into physics would be at this point a step too far for our current theory and methods base.

Even so, the speed with which legal evolution has occurred is undeniably impressive. We will become more aware of this as we proceed through the history of legal systems. The persistence of law commands our attention, as does its wide utilization in the nation-states of the contemporary world.

In this context, one should also recognize the recentness of law in human history. If Homo sapiens made its appearance on the world stage about 250,000 years ago, it took a small fraction of the time since then—let’s say six thousand years—for complex civilizations to have evolved. Before such civilizations could become viable and stable, however, they seem to have needed and embraced legal institutions as one of the major institutions of such societies. Legal systems vary in principle and practice, of course, but the impressive fact that emerges from their description is how similar they have become—so that law around the modern world has acquired very similar, though not identical, characteristics. It has made it possible, as we shall see, for the EU, the Commonwealth of Nations, and the United States to be guided by very similar legal principles. At a minimum, these include rules of procedure and substance, stated in advance and administered impartially.

We will return to these general ideas, and their current applications, in the final chapter. For now, it is time to describe some of the legally relevant developments in the ancient world and thereafter.

This book describes the development and uses of law as a central institution in the history of Western civilization. Law has generally been perceived in the West as the leading institution for doing justice. In this view, law becomes, and remains, a major effective instrument of social control within the society—as long as a power majority of the people believes that it delivers substantial justice. When the consensus rejects the claim of law as the most effective instrument of justice, the very foundations of the society are threatened.

The search in each society is for justice. How can there be a comparable search for justice in many different societies? John Rawls has enunciated the central characteristic of justice. It is fundamentally the process and outcome that individuals would favor—if they did not know what position they were occupying in the society. By that criterion, he argues, slavery would not be considered by most people to be just, and genocide would clearly be rejected—if and to the extent that people did not know whether they would be slaves, much less be tortured and killed because of their ethnicity.

If every society requires a concept of justice, their idea of justice and of the way to secure it must inevitably vary with their mores. We can generalize, as Rawls did, but the idea of justice and how it can best be achieved varies between societies. What is legitimate for one will be seen as illegitimate in another. And there will be differences within any complex society regarding this question. That being the case, law must rise above these differences by providing an authoritative formulation of justice that will be accepted as legitimate.

Sometimes law succeeds and sometimes it does not. In this work, we will be looking mostly at the successes rather than at the failures of law. That orientation derives in part from this author’s location between those who see the glass as half full and those who see it as half empty. This author inclines toward half, or even three-quarters, full. My optimism is reflected in this work. I recognize that law can be used to do blatant injustice, as in the Nazi Nuremburg laws and the Soviet treason trials. Nor do I argue that miscarriages of justice should be dismissed as nonlaw.

My position is simply this. Law has developed to its present mature state during the last six thousand years, a fraction of the time since the evolution of Homo sapiens. That is a story worth telling, and that is the purpose of this brief history. One could also write a history of law during that period that would emphasize the injustices attributable to law. That is a reasonable task, to be sure, but it is one I prefer to leave to others.

We will approach the legitimacy of law by using the work of sociologists who have studied law as a social phenomenon. In particular, we will draw on the intellectual legacy of three European sociologists of law: Emile Durkheim, Max Weber, and Eugen Ehrlich. Each of them contributed to sociolegal analysis—long before that subject came to the attention of American sociologists. Their legacy contributes significantly to our understanding of legal evolution and the place of law in society.

Least well-known of the three, Ehrlich endowed the field of legal sociology with its current name and a statement of purpose. In his ground-breaking book Fundamental Principles of the Sociology of Law, he described and publicized the term sociology of law. In his foreword, he tells us what he was trying to provide his readers:

It is often said that a book must be written in a manner that permits of summing up of its contents in a single sentence. If the present volume were to be subject to that test, the sentence might be the following:

At present, as well as any other time, the center of gravity of legal development lies not in legislation, nor in juristic science, nor in juristic decision but in society itself.

Following Ehrlich’s lead, we will explore those aspects of society that help us to understand how society affects the law. To do so, we will describe law and its place in several societies.

Society is, of course, an abstract concept that incorporates so much. To elucidate the idea, Durkheim used the contrast between simple and complex societies. Every society is held together, he maintained, by what he described as solidarity. In his view, the major difference between types of society is in the nature of that solidarity.

The simple society relies for its cohesiveness on the uniformity of its members and the commonality of their lives. These societies had a gender-based division of labor and a minimal structure of authority, the chief and the medicine man. To emphasize these characteristics, Durkheim used the term mechanical solidarity. What held such societies together, he said, was the common experience of their lives.

Complex societies, by contrast, were held together by a different principle, which he called organic solidarity. That term invoked the functioning of the bodily organs. Just as each organ performs an important function for the body, so in a complex society does each institution perform an important function for the society. In this ideal picture, complex societies at their best are held together and work out well because of their heterogeneity and the mutual gains that result from their interactions. Individuals within such a society characteristically find a place and live out their lives in ways that contribute their bit to the whole.

Durkheim was well aware of the departures in reality from that generalization. That awareness is manifest in his extraordinarily insightful treatment of suicide. This act he treated as a pathology that reflected the failure of the individual to find a satisfactory place within the society. One of its causes he attributed to upward social mobility. When individuals leave their class of origin and move to a class above, some find themselves without the support of the class from which they came or acceptance by the class to which they aspire.

The resultant stress, he maintains, results in a greater tendency toward self-destruction, an indicator of the anguish suffered by the individual caught in a social situation that lacks the support of the earlier status while offering no substitute in return.

For the most part, however, Durkheim focuses on the successful functioning of societies. He describes the work guilds in the Middle Ages as an example of the way associations can train their members from apprenticeship through a series of steps leading to master craftsmanship. Each of these guilds had its own socialization process and its own means of setting standards for its members. It also functioned in relation to other guilds to set standards of exchange between them. In this idealized description, the institutions of society related to each other to provide their members with what they needed—in exchange for what they provided.

In such a model, Durkheim viewed the tasks of law to be minimal. Contracts were important, of course, to spell out mutual obligations, but these understandings served generally to specify and remind rather than to enforce. The legal process was important in this picture less for its enforcement power than for its guidance in drafting the contracts specifying the cooperative exchanges they envisioned. Law for Durkheim reflected the understandings between entities within society. He viewed it as a reflection, rather than a significant cause, of social order.

Weber’s contributions drew primarily on his preoccupation with social order. He regularly used the term bureaucratic-legal to describe the structure of modern society. For Weber, formal rationality was required if the actions of government were to facilitate economic activity and maintain order in the society. Law played a role in this, primarily in reinforcing the powers of government and economic enterprise.

The primary requirement of law, he believed, was that it be predictable and rational. Those objectives were best achievable in his view by adherence to the Roman law, as it had been elaborated during the Middle Ages. Law could be harmful to society in this view if it were unpredictable. That was likely to occur where legal decisions were left to judges who based decisions on problematic interpretations of religious writings or on spiritual inspiration. In particular, Weber contrasted bureaucratic-legal decision making with the mode of decision of the Muslim khadi, who he surmised was guided by the Koran. This view, as we will see in a chapter on Islam, oversimplified legal decision-making in dominantly Muslim societies.

Weber’s insistence on predictability extended to English common law. For him, the practice of common law in England departed too far from code law derived from Rome. The combination of law and equity struck him as providing unduly for the introduction of special circumstances, too much authority accorded to the chancellor as against the formalism of courts, which relied on specific forms of action. We will defer for now the discussion of these diverse points of view.

Weber’s view is often juxtaposed to that of Durkheim. That dichotomy misses an important possibility. In developing different approaches to law, each described an important aspect of law as it reflects society. Every successful society has a way of specifying who its members are and how they are supposed to relate to each other. These responsibilities vary. In complex societies, law is invoked to selectively enforce these responsibilities.

The pictures posed by these sociologists help us to understand the functions of law. At its best, law is used minimally to require social responsibility when all else fails. At that point, law is invoked to judge and to enforce the legally prescribed outcome. That comprises an exercise of authority. The courts may decide not to intervene, but if they do, to inquire, to investigate, to hear both sides, and to reach a decision.

We will be using these terms in the work that follows. Complex societies virtually always have legal systems that purport to do justice. They are empowered to do so with the support of the society—not only the rulers, but also the population. That support depends on the cultural foundations of the society: the mores that summarize the fundamental norms of the society. For that reason, religion plays a large part in many societies in determining the content of law and reinforcing its effectiveness.

In the chapters that follow, we will see how differently law is used and, equally important, how similar it has come to be across a variety of nations in the modern world. That has been a product of legal evolution, a process that was described years ago in an appended article by James C. Miller and this writer.

Dealing mainly with simple societies, plus a few complex ones, we found a systematic correlation between economic development and legal institutions. Despite vigorous critiques, that thesis still stands for the relatively simple societies it sampled.

Anthropologists have in the past concentrated on simple societies. They have given us detailed descriptions based on residence, learning the language, and participating in the life of the society. In addressing the process of legal evolution, it seemed reasonable to start by studying the methods of social control practiced in such societies. Thinking that their systems of social control would move in the direction of formal law, the next step was to describe the beginnings of legal institutions in simple societies.

To my surprise, it turned out that social control in such societies could not be described even as proto-legal. Rather, there seemed to be a clear divide between simple and complex societies in their methods of social control. When disputes arose, for example, among the Philippine Islands’ Ifugao, members would seek intervention by a respected third party, designated as the "monkalun," or go-between. On closer examination, however, it turned out that the respected third party had very little success in settling conflict. He could be called in to try, but in instance after instance as described by R. F. Barton, the conflict would break out again. There was an attempt at mediation, but in Barton’s account one can find no cases where the mediation settled the conflict. Instead, the parties having signified their readiness for mediation regularly went back to violence that typically ended only with the death of one of the parties. Similar results are reported by other celebrated ethnographers including Malinowski on the Trobriand Islanders and Evans-Pritchard on the Nuer.

What appears to have been absent in such societies is the idea of judgment based on alleged facts in a process managed by an impartial third party. The idea of the judge works successfully only if the judgment is enforceable. It was that development—sanctions imposed by impartial judges—that started legal evolution on its way. The surprising fact is that law did not gradually develop from primitive social control. In evolutionary terms, law was more like a mutation than a variation—a sudden shift from primitive modes of social control such as the feud to the institutionalization of roles that included judgment and enforcement. The widespread adoption of law in complex societies suggests that law is essential for such societies, if they are to grow and develop. That idea can be kept in mind as a hypothesis that awaits closer scrutiny. We make no claim, however, that the materials presented here are sufficient to test such a proposition. Rather, my intention is to introduce the subject, as an appetizer, so to speak, rather than as a full meal.

Even so, the book develops a broad framework that can be applied to every society. It consists of four features that we call elements. I have found them useful in the effort to describe the conditions that affect and are affected by law. They are: inclusivity, responsibility, authority, and power.

Every society defines its membership i.e., who is included as a member. It specifies in binary terms who is in and who is out. We recognize inclusiveness under various names, the most familiar being citizenship. The general category does not, however, preclude marginal cases such as the European Gypsies or the slaves in pre–Civil War America.

Every society defines the responsibility of its members. Responsibilities can be general or specific. The Ten Commandments provide a familiar code of general responsibilities. They extend to every adult member and to adolescents. The rite of passage often draws the line specifying when the individual must assume full responsibility.